Freeman was wrong. Powell did not take it as a favor.
They were in Judge Villars' chambers again. It was 9:40 on Monday morning and the jury was in the courtroom, waiting. Adrienne, the court reporter, was perched with her portable equipment next to one of the easy chairs, but she was the only one sitting. Her presence was necessary, as no meeting was ever off the record.
Freeman, Hardy, Powell, his young assistant, Justin Morehouse, and Villars were taking up most of the rest of the space in the room. Or maybe it just felt that way. Everyone stood in a knot, too close, an invisible bubble surrounding them, the pressure building within it.
"I've never been more serious, Your Honor." Freeman looked especially wan in a ten-year-old brown suit. "I've given this a lot of thought over the weekend, since your generous granting of my 1118-"
"There was nothing generous about that. Don't put a personal spin on this…"
"The fact remains. I'm convinced this would not be a capital trial if Dean here weren't running for AG."
"Your Honor." Powell wore his substantial self-control on his sleeve, but it was wearing thin. "Mr. Freeman knows full well that we've still got two sets of specials on both remaining counts. This is a death-penalty case."
"It's politically tainted and you know it, Dean."
"There's nothing political about it."
Freeman turned to Villars. "Let him prove that, Your Honor, if he can. Continue this trial until after the election. See how hot our dedicated prosecutor is to fry Jennifer Witt then."
"Your Honor, I resent defense counsel's implication-"
"I'm not implying anything, Your Honor. We've got grounds to appeal right now, and I think we're skating mighty close to another due process violation. I might have to ask for a mistrial after all."
Freeman, though he said the magic word, did not win a hundred dollars. Instead, Villars raised herself up and pointed a finger at him. "On Friday you said you didn't want a mistrial, Mr. Freeman. I am not going to let you take opposite sides of the same issue."
Powell, his temper beginning to show, cracked his knuckles and ran his fingers through his hair. "If he wanted to calendar the case after the election, he could have requested it anytime. Now we have a jury impaneled, we have witnesses who've rearranged their schedules to be here. To continue the trial at this point-"
Villars moved a step toward them both, the color high on her normally gray cheeks. She spoke quietly but her voice had the crack of authority. "All right, now, both of you, listen up. Unless Mr. Freeman requests it right now we're not having a mistrial, we're not having a continuance. I'm going to give some instructions to the jury this morning and then we're going to proceed in an orderly fashion until we get to a verdict." She reached to button her robe, then stopped. "And one more thing – I don't want to see this case on television, or read about it in the newspapers over the next few weeks. Consider this a gag order. My clerk will have a written order by the recess. I trust we're clear on this."
"Ladies and gentlemen."
The judge was still angry – furious at Powell for what she considered the sloppiness of the first half of the case, and at Freeman for at least a half dozen reasons – blurring the mistrial issue, threatening to appeal, attacking Powell personally, going public with his accusations, dressing like a bag man in her courtroom. Hardy wondered if her anger was as obvious to the jury and to the standing-room crowd in the gallery, who had no doubt showed up in response to Freeman's appearance on television followed by the front-page story in yesterday's Chronicle.
Jennifer Witt had become big news again.
Though Villars had more reasons to want to flay Freeman, she appeared to be equally hostile to both sides, and this – Freeman felt – would ultimately help him. Of course, Freeman was of the opinion, Hardy reflected, that a mass murder in the courtroom would ultimately help the defense. His credo was that any disturbance in the steady accretion of incriminating evidence helped the defense. It was why he acted so disruptively.
But in spite of the huge crowd, Villars might as well have been alone with the twelve jurors in a small room. She did not so much as glance in the direction of the gallery, of the attorneys' tables. In a conversational, almost intimate tone, she was giving instructions intended to keep her trial from becoming a reversal – the nightmare of every judge and doubtless the root of her most immediate anger.
"I won't try to deny that this trial has taken an irregular turn. It is highly unusual to dismiss one charge in the middle of the People's case and I won't insult you by pretending it is not. Some of you may feel a little strange that we are going on at all, and I want to address that issue now.
"Mrs. Witt had been charged with three separate counts of murder. On Friday, you will recall, I ruled that there was to sufficient evidence that Jennifer Witt killed her first husband, Ned Hollis."
"However, I want you to understand that this should not in any way prejudice your feelings about the People's case on the remaining two charges on the one hand, or Mrs. Witt's defense on the other."
She took a sip of water and cast another withering gaze at counsel – on both sides of the courtroom.
"That said, let us now put Ned Hollis behind us. He has no integral connection to the remaining charges filed against Mrs. Witt. If any of you feel that you cannot in good conscience accept this instruction, please raise your hand now and I will excuse you form the jury."
No hands went up. Hardy would have preferred to see one or two because he knew, in fact, that this was an instruction that would be difficult if not impossible to internalize. Now all twelve jurors were sitting with the personal knowledge that Jennifer's first husband had died, and afterward she had collected a lot of money. No hands meant that it was not going to be acknowledged in deliberation over the verdict – but it was going to be there, a snake in the weeds.
Villars nodded. "Now, the remaining two counts still include multiple murder and murder for profit, and those are among the special circumstances defined in California for which the State can ask the death penalty. The deaths of Larry Witt and Matthew Witt should be your only concerns during the remainder of this trial. The court appreciates your patience in sitting through this exercise and assures you that we will not have a repetition of it during the coming days or weeks."
Villars took a final drink from her glass, then abruptly turned to face the courtroom. "I trust, Mr. Powell, that you are ready with your next witness."
"I am, Your Honor."
"All right, then, let's get this show on the road."
Not only was Dean Powell unhappy and angry, the confrontation with Freeman in Villars' chambers seemed to have galvanized him. Now he didn't just want to win for another notch in his belt or a leg up on his campaign. Freeman, always angling for an edge, had raised the stakes and now – for Powell – it had become personal. He was not just going to win by getting the jury to convict Jennifer Witt. He was also going to whip David Freeman.
Hardy flipped open his binder and found the tab for the Federal Express driver. He pushed it over in front of Jennifer so that Freeman could review it, too, but Freeman either did not need it – could it be he had the whole file memorized? – or was he reluctant to show that he did.
Mr. Fred Rivera, the Lou Christie fan – Hardy had had "The Gypsy Cried" going through the brainpan for weeks, it was driving him crazy – took the stand, slightly ill-at-ease to be the first witness but clearly pleased to be part of all this excitement, plus getting paid to take a day off. He wore his Federal Express uniform and sat forward in the witness chair, wanting to take it all in.
"Mr. Rivera." Powell stood on the balls of his feet, rocking forward and back, fifteen feet or so in front of the witness, in the center of the courtroom. "On the morning of December 28 of last year, the Monday after Christmas, did you deliver a Federal Express package to 128 Olympia Way?"
"Yes, sir, I did."
So it began, Powell walking Rivera through the delivery at precisely 9:30 a.m., when Larry Witt and Matt were still alive. Fred identified a picture of Larry. It was stamped as an exhibit, as was the Federal Express invoice containing Larry's signature for the package. Nailing the time down, Powell introduced the computer printout showing that Fred had punched in his verified delivery at
9:31.
Powell started his next line of questioning: Rivera had seen no one walking up or down Olympia Way that morning. Then without changing his rhythm, the prosecutor departed from what Freeman and Hardy had predicted would be the script. "Mr. Rivera, you had a talk with Inspector Terrell about the events of that morning and you described Mr. Witt's behavior, did you not?"
"You mean I said he was pretty uptight, like that?"
Freeman raised his index finger and objected that this was speculation and called for a conclusion. Villars sustained him. Powell rephrased it. "Mr. Rivera, what did Mr. Witt do when he opened the door?"
"Well, he only opened it a third, maybe a half way. I gave him the package and then tried to give him the clipboard so he could sign for it, but he was holding the package, no place to put it down. It seemed to make him mad."
Freeman, wondering where all this was going, raised a finger again. "Your Honor? Same objection."
Villars leaned over to the witness. "Mr. Rivera," she said gently, "just say what you saw him do, not how you think he felt about it."
Rivera's composure was slipping. Throughout all of his earlier conversations with lawyers and policemen, nobody had made him respond in this way before. Welcome to jury trials, Hardy thought.
"What did Mr. Witt do then?" Powell was suddenly his good buddy, helping him, drawing him out.
"Well, he turned half-around to give the package to the boy."
"Did you see the boy?"
"No, I didn not see him, not then. He was behind the door."
"Then how do you know it was the boy?"
"I saw him go running off to show the package to his mother."
At the defense table, Freeman was flipping pages on Rivera's interviews. "You ever hear this before?" he whispered to Hardy and then, without waiting for an answer, stood. "Your Honor, I object. The witness can't possibly know the boy's intentions going off with the package."
Freeman appeared agitated and he had reason to be. If the prosecution could show that Jennifer had been home at 9:30, and until now nothing in the record had indicated that they could, it would be a significant loss.
Villars all but rolled her eyes. "I'm sure Mr. Powell will rephrase."
Powell, still not skipping a beat, smiled at Rivera and said, "Dr. Witt handed the package to the boy behind the door. Did the boy then say anything?"
"He said, 'I'm going to show this to Mom.'"
Powell turned to Freeman, stopping to make sure the jury understood what Rivera had said. "Your witness."
It was a classic example, Hardy thought, of why trials were both so addictive and so nerve-wracking. Freeman had interviewed Rivera twice and the man had never wavered in his story – he hadn't seen Jennifer. He had wanted to get back and hear the Golden Oldie, win a trip to Hawaii. He'd been at the door with Dr. Witt for a minute at the most.
So the entire thrust of Freeman's interview had been to establish the time of delivery – not whether Matt had gone running upstairs calling for his mother.
The old bear got up slowly, but by the time he had reached his spot in front of the bench there was no further sign that he had taken a blow. He smiled at the witness, nodded to the jury. "Mr. Rivera, we've had a few conversations over the past couple of months, have we not?"
"Yes, sir."
"And during those conversations, did I ever ask you if you saw Jennifer Witt while you were delivering this package on December 28?"
"Yes, sir."
"And how did you respond?"
"I said I didn't see her."
"Did you hear her? Was she, for example, singing in the shower or something like that? Moving furniture around?"
Freeman was taking advantage of the rules that allowed defense in cross-examination to lead witnesses, and Freeman was also using this bantering tone to get back into a more relaxed mode with Fred, showing him what a regular Joe he could be.
He got his small reward. Rivera grinned, loosening. "No, I didn't hear nobody singing or moving things around."
"When the boy ran off, did he yell for his mother? Did he run up the stairs yelling 'Mom!' or anything like that?"
A risky question – if the answer was yes it would hurt. But given the repressed nature of what they knew to be the tone in the Witt household, Hardy thought it would pay off.
It took a moment of reflection. Hardy glanced over at the jury. They were following every nuance. Faces were on Rivera. "No, I don't remember that."
Some of the damage perhaps repaired, Freeman allowed himself a breath. "Let's go back, if we may, to what Matt said to his father. Can you tell us again what it was?"
Seeing this new trap, Powell was on his feet. "It's in the record, Your Honor. The reporter can read back what Mr. Rivera said."
Villars considered Powell's point a little too long for Freeman's comfort. Knowing that a trap could sometimes spring on the person who set it, Freeman withdrew the question. He did not want the jury to hear again how Matt had said 'I'm going to show this to Mom.' He had been fishing, hoping that Fred would come up with another paraphrase of the same idea, something like 'I'll see if Mom will like this when she gets home.' But no such luck.
Smiling, Freeman turned back to the witness. "So, to summarize, you did not see Jennifer Witt in the house at 9:30?"
"That's right."
"You did not hear her either?"
"No, I didn't."
Freeman paused and realized that this was about as good as he was going to get, and it wasn't all that good. Giving the jury a confident grin, he said to Rivera, "Thank you, sir. No further questions."
Powell, smelling blood, stood quickly and said he had a short question or two on redirect. "Mr. Rivera, when Matt went running off with this package, what was Dr. Witt doing?"
"What was he doing? I guess he took the clipboard, looked at his watch, signed it and gave it to me."
"Did he speak to his son?"
"No, I told you, the boy went running behind him."
"Yes, you did say that. He didn't remind the boy, though, for example, that his mother wasn't home?"
"Objection!" Freeman was up, shot from a cannon.
Villars pointed at Powell. "Sustained, Mr. Powell, you know better. Strike the last." And she directed the jury to disregard the question, which they would try to do. But Powell had done more damage, and he knew it as he graciously dismissed the witness.
Freeman was fuming. Over Jennifer's objections he had insisted that he and Hardy return to the Sutter Street offices. He need to vent and didn't want to do it in front of his client. "He never, never mentioned Matt going to show anything to anybody!"
Hardy was drinking cranberry soda out of a bottle, picking pretzels out of the bag on the center of the conference table. "Well, he did today, David. Did you ask him?"
"Shit."
"Does that mean you didn't?"
Nothing, it seemed, dimmed Freeman's appetite. He was having liverwurst and onions on a rye roll, drinking one of the popular non-alcoholic beers that were so politically correct in San Francisco but which Hardy thought were a blight on the earth. "I asked him ten times if he'd seen Jennifer. Was Jennifer there? You're sure you didn't see her?"
"You think she was there?"
Freeman swallowed what he was chewing. "The jury thinks she was there, Diz. We've got to convince them she wasn't 'cause if she was, guess what?"
Hardy knew too well the answer to that one. He sat a moment, part of him savoring the experience of Freeman choking on his arrogance, a victim of his own oversight.
After lunch they breezed through the coroner, Dr. Strout again, and this time he delivered his testimony without incident. It was no surprise that both Larry and Matt had been shot at close range with Larry's gun and had died almost instantly from the wounds. Freeman could have stipulated to most of what Strout had to say, but he held onto a small hope that once again the doctor would put some spin on his testimony that might cast doubt on the essential and undisputed facts. He did not.
There was no point in boring the jury. Freeman had been willing to stipulate to the validity of the forensics report identifying Larry's gun as the murder weapon. But on the matter of fingerprints, he had a few thoughts.
The witness was the police department's expert. Aja Farek, an attractive Pakistani woman of perhaps thirty-five. Powell had elicited from her the testimony that Jennifer's fingerprints had been on both the brass bullet casings and clip that held them.
Freeman shuffled to center stage. "Ms. Farek, did you find any fingerprints at all on the outside of the gun? – the barrel, the grip, anyplace like that?"
"No. Except the person's who found the gun, of course."
"The person who found the gun? Who was that?"
Ms. Farek consulted some notes. "His name is Sid Parmentier. He's the man who found the gun in the dumpster, I believe."
"The dumpster? What dumpster?" Freeman knew all about the dumpster. Still, he raised his eyebrows, including the jury in his shock at this surprising new development.
Powell stood up. "Your Honor, the People will be calling Mr. Parmentier about his discovery of the murder weapon. Ms. Farek is a fingerprint expert."
Villars nodded, her face a blank. "Stick to the point, Mr. Freeman."
"All right. Fingerprints." Freeman again included the jury, this time in his disappointment. He guessed that they, too, would have to wait to find out what they all wanted to know about the dumpster. Well, it wasn't his fault. He was trying to help them but the judge and prosecutor weren't cooperating. Back at the witness, he was gentleness itself. "How long do fingerprints last, Ms. Farek?"
The witness frowned. "They can last a long time."
"A long time? A month? A year?"
"Yes. Easily."
"And how old were the fingerprints of Jennifer Witt that you found on the casings and the clip?"
"I don't know. There's no way to tell that."
"You can't test them for residual dryness, anything like that?"
"No. Fingerprints are oil-based. They don't get dry in that sense."
"So she could have handled those bullets and the clip at almost any time?"
"Yes."
"Not necessarily on the day of the shooting or anywhere near it?"
Powell raised himself from his chair again. "She's already answered that, Your Honor."
Freeman piped right up. "So she has." Beaming all around, as if he'd made a point he'd been laboring over for weeks. "No further questions."
Despite the lead-in, Sid Parmentier, the man who had found the gun, had nothing either new or startling to say about the gun or the dumpster. Nevertheless, it was not in Freeman's nature to pass on even neutral testimony. He must have felt he had already used up his quota for the day by not cross-examining Strout, because he jumped up ready to go when Powell had finished.
Mr. Parmentier was heavy-set, with a Neanderthal-like hairline. His black sports coat was shiny. His over-starched white shirt was too tight, and, evidently, so was the black tie he constantly tugged at.
Freeman, loving a man who shared his sartorial tastes, stood close to the witness box, hands in pockets, relaxed. "At any time, sir, did you see the defendant, Jennifer Witt" – he pointed for effect – "at or near this dumpster?"
"No."
"Did you see her throw anything into it?"
Powell raised a hand. "Asked and answered, Your Honor."
Villars sustained him, but Freeman hadn't had his say yet, or he had another card to play. Hardy suspected the latter. "Your Honor, it bears repeating."
"I'm sure the jury heard it the first time, Mr. Freeman. If Mr. Parmentier didn't see Mrs. Witt at or near this dumpster, then it follows, doesn't it, that he didn't see her throw anything into it?"
Silently, apparently deep in thought, Freeman nodded. He half-turned around to the defense table, thought some more, then gave the jury a look.
Villars wasn't having it. "Mr. Freeman, do you want to excuse the witness? Let's stop these histrionics."
Contrite, sincere, Freeman apologized – lost in thought, as though he'd forgotten where he was for the moment. "It just occurred to me, Your Honor, that this testimony here falls into the same category as that you ruled on during the earlier part of this trial."
No one in the courtroom – not Hardy, not Powell, not the jury or Villars – knew where he was going, and he took the opportunity he had created to push forward uninterrupted. "We've got a gun in a dumpster, just like we had a hypodermic needle in a leg years earlier." Freeman turned directly to the jury, suddenly raising his voice, suddenly furious. "You see what he's doing, don't you? Mr. Powell keeps leaving out any agent who delivers these objects to their destinations. He wants you to assume that it's Jennifer Witt and he can't do that."
Bam bam bam.
Villars sounded angry: "Mr. Freeman, get hold of yourself. You don't address the jury like that. The reporter will strike those last remarks."
But Freeman kept his voice up, indignant, outraged. "Your Honor, my client's life is at stake here, and there's no evidence whatsoever that Jennifer Witt even held this gun that somehow got into the dumpster."
"Your Honor!" Powell had come around his table into the forum of the courtroom. "Her fingerprints were on the weapon."
Villars used her gavel again. "Sit down, Mr. Powell, we're not arguing this right now." She pointed a finger. "You, Mr. Freeman, are out of order. Are you finished with this witness or not?"
"I am outraged-"
Now Villars slammed the gavel, the sound echoing in the wide, high room. Next to Hardy, Jennifer jumped.
"Anything but a yes or no and you'll go to jail, Mr. Freeman."
Suddenly Freeman got himself back under control. He nodded, swallowed hard. "Yes, Your Honor."
"Yes, what?"
"Yes, I'm through with this witness."
The judge was still holding her gavel, ready to crack it down again. But the moment had passed, Powell was back in his seat, Freeman was returning to his.
Villars perused the room from her bench. With no one else to talk to, she looked down on Mr. Parmentier. "The witness may be excused," she said. "We're going to take a short recess."
"They're hating you," Jennifer said.
Freeman was walking around by the window, looking out, then back, pleased with himself. He, Hardy and Jennifer had retired for the recess to their semi-private conference room behind the bailiff's area.
"I don't think the jury is hating him," Hardy said.
"They love me," Freeman declared.
"But Mr. Powell was right." Jennifer was sitting on the desk, hands and feet crossed. "There was something connecting me and that gun – it was mine and Larry's – even if I didn’t put it in that dumpster. It wasn't the same as the needle."
"It doesn't matter," Freeman said. "After what the judge did with Ned, every person on that jury is going to have it in their minds. They're going to think it's another Powell railroad because that's what they're going to be looking for. I think we just put 'em away-"
Hardy was standing by the door, hands in his pockets, taking it in. "It's a different set of facts, David. I think the jury's going to go with the facts."
Freeman stalked back to the window, looking out and down. "Bunch of spoilsports."
There was a knock and the door opened. One of the courtroom bailiffs stuck his head in, gave Hardy a look and told Freeman that the judge would like a word with him in her chambers.